Correcting a Statement of Case, Unipharm takes on Bristol-Myers Squibb without representation

IL 178141 titled ” USE OF 1-BENZOYL-4-[2-[4-METHOXY-7-(3-METHYL-1H-1,2,4-TRIAZOL-1-YL)-1H-PYRROLO[2,3-C]PYRIDINE-3-YL]-1,2-DIOXOETHYL]-PIPERAZINE IN THE MANUFACTURE OF A MEDICAMENT FOR USE IN CONJUNCTION WITH AT LEAST ONE OTHER AGENT USED FOR TREATMENT OF AIDS OR HIV INFECTION” is the national phase entry of WO/2005/102392 – to Bristol- Myers Sqibb, a patent application for a treatment of AIDS or HIV.

After allowance, on it publishing for opposition purposes, Zevulun Tomer, the CEO of Unipharm, a generic drug manufacturer, filed an opposition. Notably, instead of using Adv. Adi Levit, who generally represents Unipharm to great success, this time, Mr Tomer filed the Opposition himself, without representation.

The grounds of the opposition was that the active ingredient was disclosed in an earlier PCT to the same applicant (example 316 of WO/2004/014380, that the combination of active ingredients for the treatment of AIDS was a known practice, and that the molecule was not shown to have an in-vivo effect. Over a year later, on learning about a publication from Bristol- Myers Squibb that he believed to be of relevance, Mr Tomer requested to amend the Statement of Case to include reference to the publication which he claimed to only have just learned about.

Bristol- Myers Squibb represented by Shlomo Cohen Law Offices, objected to the amendment, arguing that the relevance of the paper wasn’t stated. Tomer explained the relevance to the satisfaction of the Deputy Commissioner Ms Jaqueline Bracha, and was allowed to submit the paper and make necessary amendments to relate to it, but was warned against making further amendments. Ms Bracha believed that the relevance of the paper should have been indicated in the request to amend the statement and not left to the amendment itself. Interim costs of NIS 7500 were awarded to Bristol- Myers Squibb.

COMMENT

One wonders if the costs incurred might have been avoided had Zevulun Tomer had used professional representation. Clearly it is his right to file oppositions himself, and using quality professional representation such as Adi Levit doesn’t come cheap. Then again, Mr Tomer is very experienced at this, and has watched Adi Levit in action over the years.